Top State Legislators Weigh InIn a "time of creative tension" between the states and Washington, signs of a breakdown in the federal partnership are widespread. "Our legislature met more days last year than the U.S. Congress," says the President of the Kansas State Senate. "To me, that says a lot."

At April's NCSL Spring Forum in Washington DC, Policy Today brought together senior legislators from six states to discuss their role in the federal model. Driving the discussion amongst the participants was a belief that relations between the states and federal government are based on a flexible model of shared responsibilities (as opposed to 'shared sovereignty'). Although that model has served the country well, the partnership has gradually fallen into disrepair.

The objectives and concerns shared by the state legislative leaders speak for themselves, yet the difficulty lies in a system of government that rests on the interdependence between a national government and 'that closer to home.' The ultimate question: Where do we go from here?

Political Authority in the States

"Education, welfare reform and the environment are all areas in which the states have proven to be effective policy innovators."

Dan Schwartz: There is a significant amount of political authority residing in the states, and yet for whatever reason, it doesn't seem to be exercised the way it could be. Why is that?

Bill Pound: Education, welfare reform and the environment are all areas in which the states have proven to be effective policy innovators. I happen to believe that most innovation tends to take place at the state and local levels and then bubble up. Yet it strikes me that we're in a time in which there is a lot of very creative tension between the states and the federal government. Each one pushes and pulls the other and over time, the shape of the relationship changes.

MA Senator Richard Moore: There have been some interesting dynamics over the past 30-40 years, to be sure. With the Great Society, the federal government sent us a lot of programs and a reasonable amount of money along with them. Over the last decade or so, we've seen more of an attempt to repeal the Great Society programs while leaving the problems to the states to deal with on their own. And I don't think that trend is at all partisan one way or the other. Congress wants to try to solve a lot of the problems we're dealing with in the states, but they address them with a hammer while we are using a scalpel.

KS Senate President Stephen Morris: I would make a comment on the subject of Medicaid. The program wasn't originally designed to have the states do what we've been doing, especially with respect to the elderly. There is a huge burden on the states to take care of an elderly population through Medicaid, but we don't have the dollars to do it. On top of that, the federal government is trying to trim Medicaid dollars wherever it can. At some point there's going to be some kind of sea change; the states just don't have the resources.

UT House Majority Leader David Clark: You know, with most of these programs, the federal government shows up and buys your friendship. For the most part, the states have bought into that. For decades, many of us set policy by maximizing federal dollars. But now, with deficits the way they are, the entire philosophy has changed. Unless the states stand up in uniformity, I think that Congress will continue to shift greater and greater burdens away from the federal government.

Sen. Moore: I think you're going to see a real revolution in the federal partnership with respect to REAL ID. Here you have the federal government taking over a responsibility that the states have always had, and at significant cost to the states.

States' responsibilities and resources

"How do you realistically keep up with the details of what's going on?"

Schwartz: To some extent, that's the real issue here. We could argue that the power and authority of the states has been collectively disaggregated. At one point in our history, the states had a lot more purchase on the federal government. For example, U.S. senators weren't popularly elected; they were elected by the state legislatures.

UT Senate Majority Leader Curt Bramble: That's absolutely right. The 17th Amendment effectively repealed the 10th. The 10th Amendment says, "These are the duties and powers of the federal government, and anything else not enumerated here are reserved to the states." Then in 1913 you have the 16th Amendment, which instituted the federal income tax, and the 17th Amendment, which provided for popular election of U.S. Senators. On the heels of these amendments came the New Deal and the Great Society.

Now look at what we have in education, health care and even the securities industry. In Utah we passed a law regulating fraudulent acts in securities and we were forced to repeal it due to federal preemption. In transportation we have the federal government paying money to build a bridge somewhere in Mayberry. Why? That was never intended, and I think you can tie this to the passage of the 17th Amendment. That was where the states had their voice in Congress, and it was an equal voice, whether you were in Utah with a couple million votes or California with tens of millions of residents.

SD Senator Orville Smidt: I'd characterize the problem another way as well. We have part-time legislators who come for 35 or 40 days a year, but you have full-time government now. I visited the House Labor Committee the other day and they were discussing the Perkins Act. Now, there are a lot of new changes coming down over there, and one frustration I have is that unless you're here, you have no idea what those are. I went up to the two presenters after the session and asked, "Who do you talk to from South Dakota?" Well, one was talking to the state and the other was talking to the local school districts. Of course, then the president has his idea and Congress has its own plan. I'm left wondering how you realistically keep up with the details of what's going on.

Exercising the states' authority

"Redistricting is the only piece of leverage the state has."

Schwartz: What kind of sway do the states currently have over the federal government's policy positions?

NC House Speaker Joe Hackney: One of the only remaining areas of leverage is redistricting. I don't know what your experience is in your own states, but it seems to me that we have a closer relationship with our congressmen around the end of the decade than we do at the beginning. That's why I think that independent redistricting commissions are probably a mistake. On the other hand, you could choose to raise and spend your own money and not take any from Washington.

Sen. Bramble: Does that include not giving any money to Washington?

Speaker Hackney: In a sense, the federal government uses up most of the taxing authority because the public only has a tolerance for so much taxation, as well they should. So, that taxation relationship is key to this. Redistricting is the only piece of leverage the state has outside of an occasional piece of litigation to rectify some overstepping.

"Checks and balances"

"I would hope that the states would just dig in and say, 'No, we're not going to do that.'"

Schwartz: Let's go back to the theoretical for a moment. There are two notions here when we talk about "checks and balances." One is obviously the separation of powers, but the other is a type of vertical constraint between the two levels of government. But there is no single locus of power for the states. How can this operate more powerfully in a vertical fashion with the states exercising their collective political authority?

Speaker Hackney: It only happens once every 10 years.

Pound: The reaction to REAL ID in some ways is an illustration of that as Senator Moore said a little while ago. There's a lot of resistance from a number of states that are either not complying or, like in the Montana bill, saying to their executive branch, "You will not comply."

Sen. Moore: Some of the states are putting up posters in their motor vehicle off-ices explaining that this is a federal requirement. If you dislike it you should call your senator or congressman.

VA Senator Emmett Hanger: I think that REAL ID is just a very obvious example of where this type of thing happens. If you look at it, it's essentially a national ID, and the states are being treated as sub-agents of the federal government, and then asked to develop their own resources to implement the program. It's so obvious, I would hope that the states would just dig in and say, "No, we're not going to do that." As the people in Washington look at it, I'm sure they'll start to come to the same conclusions themselves.

REAL ID: A bridge too far?

"The real problem is that the federal government passes so much authority to the states' executive branches, ignoring the legislative branches."

Schwartz: If the debate is to be successful, I think it has to move away from any discussion of "state sovereignty," sovereignty being the absolute right of a sovereign or king to do anything it wants. That notion has never really been present in our country by virtue of the fact that our federal government divides authority. What I'm getting at is that it's more of a shared authority—a partnership—rather than an agent/sub-agent, parent/child type of dynamic.

Pound: It should be a partnership. That's how it's supposed to work. I think it operates in that fashion more today than it did 40 years ago. Whether it operates the way it should is a separate question.

KS House Speaker Melvin Neufeld: There's another aspect of the relationship between the federal and state governments that troubles me. The Montana bill is a good example of this. The legislature didn't pass a law on REAL ID to tell the federal government, "No, you can't do this to us." They had to pass a law to tell the administration in their own state not to do it to them. The real problem I have is that the federal government passes so much authority to the states' executive branches, ignoring the legislative branches. Then we have to play catchup to try and retain our separation of powers and constitutional duties in the states.

Sen. Moore: That's exactly what's going on with REAL ID specifically. Those who are handling it are only dealing with administrative officials from the states' executive offices, none of whom are elected to my knowledge.

The power to spend

"It all comes back to the money"

Schwartz: This all seems to illustrate a larger point: the states are confronted with major problems and limited resources to handle them, while the federal government—with its capacity to generate enormous revenue—is failing to meet the challenge on these issues. How do we rebalance the equation?

Speaker Hackney: It all comes back to the money. If it were the case that the income tax rates were reversed—the states took the federal government's current share and vice-versa—this entire debate would be entirely different. They use the money for everything, and the courts have allowed them to do it.

Sen. Bramble: This week we met with Secretary Levitt's chief-of-staff. The administration's health care proposal required that the states put up 10% and the federal government would put up 90%. But there's a problem with that—it's not their money! They don't create wealth; they take it from the states via their tax policies.

Sen. Morris: Well, I think we're going to see a huge disconnect when it comes to REAL ID when people around the country realize what it entails. Most people around the country don't know what's going to happen, and it's going to cause an enormous debate. When our constituents start to realize what's going on and they start to speak out, we're going to have to tell them to contact their member of Congress. The point is that this is going to cut across both federal and state levels, and I just can't imagine what the reaction is going to be from people across the country when they finally understand what's going happen.

Informing the public

"It's very difficult to get the word out."

Schwartz: That's an extraordinarily interesting point. To a large extent, given today's 24-hour news cycle, political media is almost exclusively focused on Washington. As media consolidate, would you say it has become more and more difficult for you to get the word out to your constituents about what's actually going on?

Sen. Smidt: It's very difficult to get the word out, that's absolutely right.

Speaker Hackney: Our folks don't know anything about REAL ID.

They don't know anything about it, and they won't know anything about it until they try to get on an airplane or go into a federal office. Given all of the problems and the somewhat stronger reaction from the states than the usual federal mandate draws down, I'm skeptical that REAL ID will even make it all the way to the finish line. This one has a different feel to it. This time it seems like the states are really standing up and saying, "This time you don't know what you're doing, your objectives are un-sound and it's insufficient to just say that 9/11 is an appropriate justification for anything you want to do."

Speaker Neufeld: Especially when so many states have already upgraded their licensing security. Of course, for us, real ID doesn't even begin to solve the real underlying issue, which is identity theft.

Can the balance be restored?

"Part of the problem is that we don't have a strongly unified position"

Schwartz: All of this brings us back to that central question: is there a better way for the states to regain their voice and exercise their political authority the way they could or should?

Sen. Moore: Part of the problem is that we don't have a strongly unified position. In the states, the governors all think they're going to be senators or the president someday, legislators think they might be going on to Congress, so there's some feeling that, "Well, we don't want to push too far, because we might want to have that authority when we get there."

Another reason for the lack of unity is that some of those people in Congress may be your friends, and many of them are from your party. So there's a sense that you don't want to embarrass your fellow party members. So, there's no solid position that isn't co-opted by some other ambition, or friendship or something else. Even when we do things at NCSL, if the Governors' Association has taken a different position—and sometimes that has happened—then the states' voices are kind of muted. Ultimately, we have to get our act together. The question of how we do that and really have an impact is still up in the air, although an issue like REAL ID could really work to galvanize the sentiment.

Speaker Hackney: And there's plenty of paralysis to go around in state governments around the country as well. An example would be our effort to modernize the tax code. It has been extremely difficult to put the executive and the two parties together in a concerted effort to do that. These end up becoming problems that the federal government then takes it upon itself to try and solve.

Sen. Moore: We're sometimes our own worst enemies as legislators as well. In many states we don't provide professional staff. We pay them low salaries and that causes job hopping from the legislature to the executive, and maybe then on to the federal government. So, we're not providing enough of our own resources to strengthen our clout and our argument.

Sen. Smidt: It goes back to my earlier point about a part-time legislature and a full-time government. These issues never stop; they just keep going. I've tried to do some things in our state to change the legislature—to modernize it and help it out. It's really a system set up for 30-40 years ago and it just hasn't kept up.

Sen. Morris: On another note, speaking of structural issues, one of the frustrations that I have is this disparity: our legislature in Kansas met more days last year than the United States Congress. To me, that says a lot.

Rep. Clark: You can see that lack of engagement across the board. First of all, our Founding Fathers did not anticipate that democracy would be anything but a participatory endeavor. You can't sit on the couch and have it function; you have to have a high level of engagement from the citizens involved. I hope that through this process, if there's any good to come of the current political climate, it will be that people will begin participating in the political process again and that this will bring about change. I don't know how big it might be or how broad, but without it, I think we can anticipate further stagnation.